Q&A on child immigration crisis with Law School's Maria Woltjen

Since October 2013, more than 52,000 children, most from Central America and unaccompanied by adults, have crossed the Southwest border into the United States, according to U.S. Customs and Border Protection. That’s nearly double last year’s total and 10 times the number from 2009. Administration officials have called it “an urgent humanitarian situation.”

Maria Woltjen discussed the latest crisis with UChicago News. She heads the University of Chicago Law School’s Young Center for Immigrant Children’s Rights Clinic, a national initiative that provides child protection advocates for unaccompanied immigrant children detained by the federal government.

What has caused the recent surge of unaccompanied children crossing the Southwest border into the United States?

The reasons for this mass migration are tangled. For many, the treacherous journey to the U.S.-Mexico border is an act of desperation. A March 2014 United Nations report found that the majority of Central American children coming to the U.S. on their own are fleeing dangerous and violent situations in their home countries. The United Nations reports that Honduras is the murder capital of the world, with Guatemala and El Salvador close behind.

Of course, there are other factors—severe poverty, lack of education opportunities, no health care and not enough to eat. For some, it’s the desire to be reunited with parents who are currently living in the U.S. According to a recent Office of the UN High Commissioner for Refugees survey, over half of Central American children who had crossed the border alone had one or both parents in the United States.

Where do the children come from? How do they get to the border region?

Most of the children are from Honduras, Guatemala and El Salvador. They travel any way they can: by bus, by foot, clinging to the sides and tops of trains. A majority of the children are led by smugglers known as coyotes, some of whom charge families up to $10,000 to bring each child to a spot near the border. Then, the child walks over to the border, where they give themselves up to the custody of U.S. Customs and Border Protection. These journeys are often grueling, making children vulnerable to abuse and trafficking along the way.

What do they have to go through after they give themselves up to Customs and Border Protection?

The children reaching the U.S. border will be charged with breaking the law and placed in deportation proceedings. They’re required to go before an immigration judge and face a government attorney in a formal courtroom. Unfortunately, many, if not most, won’t have an attorney to speak on their behalf, or a child advocate at their side. Unlike in our state courts, where children’s cases are handled separately and where there is a standard called “best interests” of the child to govern the proceedings, the unaccompanied children apprehended by the Customs and Border Protection are treated like adults.

Is it true that the majority of the children are allowed to stay in the United States indefinitely?

It’s not true. The children are not automatically granted legal status of any kind. Under the Trafficking Victims Protection Reauthorization Act of 2008, unaccompanied children from non-contiguous countries must be transferred to the custody of the Department of Health and Human Services within 72 hours of being apprehended. The Customs and Border Protection office transfers them to secure facilities around the country. The children do not have permission to remain in the U.S. They are required to appear in immigration court and demonstrate eligibility to remain in the U.S.

The U.S. and Mexico have an agreement that allows the U.S. to return Mexican children back across the border without taking them into custody, if Customs and Border Protection officers determine that they have not been trafficked and do not fear being persecuted if sent home.

With the influx of unaccompanied children in recent months, the shelters for unaccompanied children have now been filled to capacity. The government has begun to use military bases as emergency shelters. The children will temporarily stay in the shelters while waiting to be reunified with family in the U.S., placed in long-term foster care or sent back to their home country.

What is the role of UChicago Law School’s Young Center for Immigrant Children’s Rights Clinic?

The center is working with federal agencies and the White House to protect the children’s rights guaranteed in the Trafficking Victims Protection Reauthorization Act of 2008. The TVPRA provides that the child advocate’s role is to advocate for the best interests of the child. However, there is no statutory best-interests standard in immigration law, no requirement that judges consider what’s best for the child before them even though the decisions can carry life-and-death consequences.

Based on standards adopted in our juvenile courts, a child’s best interests means that a judge, when placing a child, will consider whether the child will be safe, whether the child will be separated from family against his or her wishes, whether this is what the child wants. The center also looks to international law, specifically the Convention on the Rights of the Child, which requires the consideration of best interests in all decisions regarding children.

The U.S. has a long tradition of offering refuge for those who fear for their safety, but there’s a gap in our law when it comes to children.

How should the U.S. government handle the current crisis?

We believe that every young immigrant deserves to be safe. Children who flee violence, abuse and poverty should be protected. Wherever one stands on the immigration debate, we need to recognize that unaccompanied children are the most vulnerable. We need to make sure that wherever they land—here or back in their home country—they’ll be safe.

Among other things, my colleagues and I at the Young Center urge the President and Congress to:

Ensure an attorney represents every child.

Provide an independent child advocate—a guardian ad litem representing the child’s best interests—for particularly vulnerable children, including any child who expresses a fear of return or if deportation would separate the child from a parent in the U.S.

Adjudicate children’s cases in a timeframe that accounts for the child’s age, development and history of trauma.

Ensure that federal decision-makers consider the child’s best interests in all decisions, particularly regarding repatriation.

Develop a comprehensive approach to address the root causes of this unprecedented migration of children without sacrificing well-established principles of child protection.